One Tiny Cheer for Miers

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I am no fan of trial lawyers and neither is Harriet Miers. According the Washington Post, Miers once persuaded then-Governor Bush to veto a bill that would have forbidden the Texas State Supreme Court to limit trial lawyer fees. If the bill became law, Miers wrote Bush, "once again Texas would be required to hang its head in shame for circumstances driven by a handful of greedy, but immensely rich and powerful lawyers." She further criticized the bill as "a blatant attempt to shield, protect and curry favor with interests that have brought shame on this state, badly hurt our economic development efforts directed at creating jobs and continue to this day to cause our state to be held in disrepute for `justice for sale.'" With sentiments like these, Meiers can't be all bad.

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  1. Bush vetoed a bill? Surely you jest.

  2. This doesn’t sound like a proper libertarian position. You really think the state should decide who is “overpaid” and institute income limits on certain professions?

  3. This doesn’t sound like a proper libertarian position.

    Yes, but neither is trying to get juries to direct the state’s power towards extorting millions of dollars from companies because someone spilled hot coffee on themselves or got cancer from voluntartily using a product known for decades to do just that.

  4. I guess I forgot when it became extortion to win a case as decided by a jury of one’s peers.

    I find it continually strange that “libertarian” so often translates to “whatever business wants to do” rather than the “whatever is within the rights of individuals” as so often advertised by its proponents.

  5. It would perhaps be different in civil cases if the defendant could choose whether to be tried by a jury or the bench, rather than it being the plaintiff’s decision.

    Besides, who is the peer of, say, RJR Nabisco?

  6. I find it continually strange that “libertarian” so often translates to “whatever business wants to do” rather than the “whatever is within the rights of individuals” as so often advertised by its proponents.

    It’s always about the individual. The individual has the right to use a product that causes cancer, but not put someone else (other individuals) out of business because it did what everyone knew it would do.

    An individual has a right to use medication that may have certain side effects. They do not, OTOH, have the right to punish someone for having an illness that can’t even be slightly attributed to the medication (Vioxx).

    An idividual has the right to buy any product and use it in anyway they wish (read: by coffee and bath in it), but they do not have the right to punish a business simply due to operator error.

    The right to wave one’s hands stops at the edge of the next man’s nose.

  7. I find it continually strange that “libertarian” so often translates to “whatever business wants to do” rather than the “whatever is within the rights of individuals” as so often advertised by its proponents.

    Don’t forget, those businesses are owned by, you guessed it, individuals! So substituting, algebra style, into your above sentence we get: “…”libertarian so often translates to ‘whatever individuals want to do’ rather than ‘whatever is within the rights of individuals’ as so often…”

    Which is sort of correct. Libertarians will often discuss and reasonably disagree over the boundaries between the rights of individuals and the actions of others.

  8. A jury of your peers?

    Hmmm…..I think anyone with common sense knows that juries that give out these ridiculous settlements view this whole thing as “winning the lottery”.

    Hmmm…people who aren’t trying to get out of jury duty and sit on these trials are whom, exactly? The unemployed, the under-employed, the slacker. Who wants to win the lottery.

    As a small business owner, can I expect if some piece of work gets litigious, the jury will be well educated athiest mothers, homeschooling their children at home while running a high volume business from the converted garage, maybe producing theater productions in her ever dwindling spare time?

    No, I can bet on that jury being filled with people who watch Jerry Springer, rather than people who haven’t watched any TV in six years. GREAT!

  9. I guess I forgot when it became extortion to win a case as decided by a jury of one’s peers.

    It isn’t necessarily. But it is in the types of situations that I referenced. What you have here is a situation where an unlibertarian method is proposed to reform a legal system that routinely turns up unlibertarian verdicts. There aren’t any easy answers.

    I find it continually strange that “libertarian” so often translates to “whatever business wants to do” rather than the “whatever is within the rights of individuals” as so often advertised by its proponents.

    Do you seriously think that it’s only major corporations that get screwed over by unjustified lawsuits filed by ambulance-chasers and their legal equivalents?

  10. Don’t forget, those businesses are owned by, you guessed it, individuals! So substituting, algebra style, into your above sentence we get: “…”libertarian so often translates to ‘whatever individuals want to do’ rather than ‘whatever is within the rights of individuals’ as so often…”

    don’t forget, those corporations literally own the shit that their employees see fit to contribute during working hours. Substituting, algebra style . . .

  11. I also see no problem with a Libertarian position against the current system for the following reasons.

    1) It is not a jury of your peers as preemptory challenges and voir dire abuses allow the case to be pre-tried

    2) There are no “Loser Pays” rules. Constant threats can bankrupt anyone.

    3) Forum shopping allows certian local jurisdictions to control national law.

    4) Class actions should be opt-in not opt out. I wish I could force people to use my services unless they go through a lenthy process to refuse.

    5) Contracts are not enforced. There are many activities that are being fobidden by liability concerns due to the fact that individuals can not assume personal responsibility regardless of the contract signed.

    That being said, I think Ron should have promoted correcting these issues instead of the one regarding pay.

  12. Eric II, how about we put people in a position to hear both side’s cases, and make determinations based on the unique facts of each individual case, rather than having those classes of cases whose one sentence description offend your sensibility be forbidden under a judicial Eric IIocracy?

  13. I can see how limiting awards in civil cases can be consistent with a libertarian world view (this would be a limitation on the power of the state), but not limitation of lawyers’ fees.

  14. Eric II, how about we put people in a position to hear both side’s cases, and make determinations based on the unique facts of each individual case, rather than having those classes of cases whose one sentence description offend your sensibility be forbidden under a judicial Eric IIocracy?

    Who said anything about forbidding them? The question at hand was whether there should be limits on the amount of money lawyers representing the plaintiffs can make off of them, thereby potentially limiting the number of frivilous/egregious cases that come to trial. And for the record, while I think the idea has some merit, I think a better approach is to go with the British model of having the losing party bear at least some of the legal costs of a suit, and having judgies rather than juries determine the amount of compensation due for a given guilty verdict.

    But keep building strawmen if you’d like.

  15. “I think a better approach is to go with the British model of having the losing party bear at least some of the legal costs of a suit, and having judgies rather than juries determine the amount of compensation due for a given guilty verdict.” – Eric II

    The idea that juries somehow are composed of those individuals who are most divorced from common sense is as absurd as the idea that our judiciary is not by nature as sympathetic to corporate interests as our legislation is by design.

    Wow, that was some tortured grammar.

    I just don’t see why this should attract as much attention as it does, when insurance and credit card companies (to say nothing of W.R. Grace or Big Pharma) cost the taxpayers and consumers substantially more per annum. Or are you just pissed off because you haven’t had the lottery-winning crotch scald?

  16. “having judgies rather than juries determine the amount of compensation due for a given guilty verdict.”

    Me thinks yer confusin’ civil and criminal law der Eric II. But I am not a lawyer !

  17. EricII, your language here: “…trying to get juries to direct the state’s power towards extorting millions of dollars from companies because someone spilled hot coffee on themselves or got cancer from voluntartily using a product known for decades to do just that.”

    This goes well beyond a criticism of high lawyers’ fees. The very practice of suing corporations, or as you put it, “extorting millions of dollars from companies,” is the subject of your little screed, and the act you take exception.

    The man has flesh.

  18. The idea that juries somehow are composed of those individuals who are most divorced from common sense is as absurd as the idea that our judiciary is not by nature as sympathetic to corporate interests as our legislation is by design.

    Jury members aren’t always divorced from common sense, but they seem estranged from it a bit more often than judges. Paricularly in the American civil law system, where, owing to the nature of the system, it’s pretty common to find juries containing a disproportionate number of people who are uneducated and/or fueled with class envy.

    And judging by your line about institutional bias to corporate interests, you might fit right in. Either that, or you’ve been paying no attention to the modern history of major cases involving corporate America, and have little or no knowledge of American corporate tax law and the actions of various state and federal regulatory agencies.

  19. This goes well beyond a criticism of high lawyers’ fees. The very practice of suing corporations, or as you put it, “extorting millions of dollars from companies,”

    That was a poor choice of wording on my part. I meant to say that an act of extortion happens in the types of cases that I mentioned, not that a lawsuit against a corporation is by nature extortionary.

  20. After limiting attorney’s fee percentages,
    I guess we could help out civil defendants by
    limiting the hourly rates charged by defense
    lawyers and the premiums charged by liability
    insurers, and help out those accused of crimes
    by limiting the fees charged by criminal
    defense lawyers. There’s no end to this
    way of thinking. I haven’t read it, but
    apparently the Texas bill would have just
    stated that the ability of clients to enter
    into fee agreement contracts with attorneys would not be taken away by a simple majority of the TX Supreme Court attempting to exercise
    rule-making authority.

    On another note, I really wish people would quit citing as an example of a frivolous lawsuit the
    McDonald’s coffee case. In case anyone
    is actually interested in facts, you can
    go to this site from ATLA, the national trial
    lawyers organization:

    http://www.atlanet.org/pressroom/FACTS/frivolous/McdonaldsCoffeecase.aspx

    for a detailed factual recitation of what
    actually happened and quotes from a balanced
    WSJ article on the case, the injuries sustained,
    the damning evidence from the representatives
    of McDonald’s, and the eventual settlement of
    the case for an amount even lower than the
    judge’s reduction of the jury award.

    I know that there are frivolous cases
    that are filed, but this is not one of them.

  21. Not following you Rick. She had the coffee between her knees, she should have known how hot it was.

    She wasn’t driving, she had no way of knowing what the car would do.

    “Coffee served at home is generally 135 to 140 degrees.” Really? Do tell. So that means if I am in the average home, no matter if the homeowner sets the coffee pot to brew during dinner and serves it with dessert or if they make press coffee with barely boiling water or if they have an espresso machine, the coffee will generally be between 135 and 140?

    700 claims in 10 years? What percentage of coffee sales it that? “Some claims” – how many is some? Odd how the fact sheet has such hard numbers for coffee generally served in homes but doesn’t know much about the nature of these 700 burn claims.

    The facts to nothing to bolster your case.

  22. Rick,

    I have read the Trial Lawyer’s spin on the McDonalds case and I think it perfectly demonstrates the problem. No matter how absurd a verdict is, they have the talent to make it seem resonable.

    I think the worse thing here is that any industry can make a mistake, but the Trail Lawyer industry has never admitted one mistaken verdict.

    When one profession often controls all the branches of government, would a rational person not expect abuse.

    As far as the McDonalds verdict, who cares if the coffee was at a high temperature. If that is the way the customers like it then so be it. 700 complaints out of billions. With that kind of reasoning, 700 people should be able to control the experience for everyone else.

    Here are the facts,

    1) woman buys hot coffee
    2) woman spills coffee on self.
    3) problem is aggravated by her age
    4) problem is also worsened by sweat pants, which soak up the hot liquid.
    5) woman demands money from McDonalds for medical bills
    6) McDolalds refuses

    If this isn’t a frivolous case, then nothing is. That is why the Kerry/Roberts solution to solve the tort crisis was a joke. How can you hold lawyers responsible for filing frivolous cases, when they don’t exist.

    I always vote for the guy who isn’t a lawyer. Unfortunately it was Bush, but it usually works well.

  23. oops, Kerry/Roberts I mean Kerry/Edwards. I am thinking about the SCOTUS nominations too much these days

  24. I am aware of the dangers of anecdotal evidence, but here is my personal experience, and why I am in favor of a national law forcing McDonalds to serve coffee at a lower temperature:

    -When I make coffee at home, I can drink it in 5 or 10 minutes.

    -When I go through a drive through and pick up McDonalds coffee, I have driven as much as 50 minutes before it is a drinkable temperature.

    I’m totally on that woman’s side, libertarian credentials be damned.

  25. hahahaha

    Have you considered going to BK or Wendy’s instead?

  26. This doesn’t sound like a proper libertarian position. You really think the state should decide who is “overpaid” and institute income limits on certain professions?

    When those “professions” are legally restricted by heavy hoop-jumping, and largely for reasons of monopolistic pricing (restriction of the labor pool), then, yes, I think such strong restrictions could be a reasonable counterforce.

    Oh, but absolute, deontological libertarianism is so attractive when one conveniently selects the factors to consider.

  27. “And judging by your line about institutional bias to corporate interests, you might fit right in. Either that, or you’ve been paying no attention to the modern history of major cases involving corporate America, and have little or no knowledge of American corporate tax law and the actions of various state and federal regulatory agencies.” – Eric II

    First, I am an attorney who used to work in tax, and I think you’re conflating tort and tax law. Second, as far as “the actions of various state and federal regulatory agencies,” it depends – I guess I’m aware of the way the EPA has acted and corporate reactions to that on one end of the spectrum, and the FCC on the other – but I don’t see the connection between tort law and government regulation, so I’m not following your argument.

    Corporate entities have their own interests at heart, and they should – their duty is neither to you nor me nor to the Lorax, but to their shareholders. I guess the simple thought experiment I use is that corporations contribute millions of dollars to campaigns, pay lobbyists, sponsor judicial trainings, and so forth – it kind of makes sense that they would expect something for their investment.

    Is this bad? I don’t see why it would be, from an economic point of view.

    But I don’t understand your distrust of juries. Might as well distrust voters, huh? I’m not trying to be unpleasant, but they are drawn from the same list. By the way, attorneys typically don’t let attorneys on juries, because we’re weird – we tend to know too much about the law to be entirely predictable.

  28. Some comments:

    Jury problems tend to be localized in fact, but expansive to national in law. What is meant by that is that bad juries tend to come from distinct areas – in PA, Philly (there is a strong correlation between bad juries and dysfunctional public education systems). The rest of the state is very different – there are publications that track jury awards by county sorted by basic facts. As a general rule, one can expect at least a 10x higher verdict on the same facts in Philly as opposed to outside of it.

    However, the problem is made to affect the whole state by insurance and other regulations promulgated by PA, as well as forum shopping (although that has been somewhat limited recently). Then the Feds get involved (to a much lesser degree) and there are national implications to the local problem.

    Many of the problems that the whiners point to can be solved by eliminating these regulations so that insurance and other providers can make rational pricing decisions so that the price of these problems is only felt locally.

    Another point: Many people cry for the British system of loser pays. To me, these people are broadcasting their ignorance at top decibel. I know quite a few corporate counsel, and they vehemently oppose such a change. Why? Because a judgment is only a piece of paper. Yes, McDonald’s (assuming it would win the case in perfect Republican world) could get a verdict for fees (etc.) in the amount of $100,000 (heck, big corps get big lawyers and spend lots of money on cases, right?) against 80 year old grandma who is living on SS checks. Have fun collecting it, guys.

    Meanwhile, when McDonald’s loses, it will be relatively easy for plaintiff’s lawyers to collect their fees from deep pocket corps. And since the incentive is to win at all costs (0% fee recovery vs. 100% fee recovery) there will be no incentive to economize their activity. Spend, spend, spend will be the motto.

    And of course, you will then be litigating over the “reasonableness” of the fees.

    To me, there isn’t anything libertarian about completely removing contractual bargaining from the fee setting process.

  29. Common sense says, you shouldn’t hand something through a drive-through window that can cause burns serious enough to require skin grafts. Duh.

    If you lack the intelligence God gave the typical dairy cow, the repeated instances of people being harmed by the practice and telling you about it should tip you off.

  30. Count me as another one who finds it hypocritical that libertarians always advocate resorting to tort instead of regulatory law for things like the environment and health care, but then post crap like this about lawyers.

  31. Since we’re talking about the coffee case a decade later, here are some things to keep in mind:
    McDonald’s knew their coffee was kept at scalding temps.
    They did not change their machinery because to do so was expensive.
    Part of the reason for the punitive damages was to impose a fee that exceeded the cost of the replacement. The idea here was to demonstrate that companies ought not try and save money by allowing dangerous conditions to exist. This is all from the trial record.

    Now, before the howling begins and the libertarian lynch mob assembles to hang me, I should point out that I’m not endorsing that particular verdict. I’m simply suggesting that there was more to the case than one usually hears.

  32. Breed-I can’t speak for the other Hit and Run types, but I distrust voters. So did the Founders. That’s why we have a consitution which deliniates the government’s powers-to provide a check on mobocracy.

  33. Number 6,

    They also trusted juries enough to empower them to make decisions about life and death.

  34. This bill is an ENCOURAGING sign about Miers? Pshaw. Free Minds, Free Markets, indeed. Where have all the Libertarians gone?

  35. Number 6,

    Good spin on the facts of the McDonalds case.

    In a free world, I could sell a cup of burning gasoline through a drive through and people could assume the risk and buy it. Unfortunatly, our legal system, through the risk of liability, has created a nanny state.

    I beleive there was a more recent case in Nevada, with similar issues. The judge found that a cup of hot coffee is a clear and obvious danger. I think that says it all.

  36. Rick,

    Thank you for the good post on what really happened in the coffee case.

    McDonald’s was not punished for burning the lady with coffee. Rather, McDonald’s was punished for ignoring written warnings that its beverages were causing more serious burns than other restaurants. If McDonald’s had taken care of the problem in some decisive manner in a private manner, like a good libertarian company, then none of this would have happened. Legislation by jury came in only after written, non-legislative warnings to McDonald’s failed.

    The libertarian lesson here: if your customers have a new, unusual problem: then take care of it. You want gov’t off your backs, then show some initiative in the area of responsibility in the private sphere. Any other pattern of behavior is an open invitation to gov’t more active intrusion and that is exactly what happened in the McDonald’s coffee case.

    ON THE OTHER HAND: This thread has made me reconsider the wisdom of punitive damages (but not compensatory, which should probably be easier to get than they are). Generally speaking, punitive damages seem to give judges and juries too much opportunity to legislate.

    Still, the punitive damages power wasn’t abused in the McDonald’s case — punitive damages are designed for private companies that fail to heed credible private warnings, which is exactly what McDonald’s did. It was nice to see a deliberative body, who never met with McDonald’s lobbyists in private, making the decision about what to do with this very naughty corporate citizen.

    Even though nobody reports on this, I bet McDonald’s takes warnings more seriously than before the coffeee case. If true, the punitive damages have encouraged good behavior, even though McDonald’s does not choose to publicize how chastened it has been and the possibility never seems to have occurred to the rest of you as a benefit. Probably because the people who benefitted remain in understandable obliviousness to that fact. When the system works, and McDonald’s heeds credible warnings, the benefits are real, but sadly invisible.

    FINAL NOTE: Man is private industry doing a good job on getting hydrogenated oil out of the market now that the health risks have become clear. They didn’t even get olestra off the market this quick! thank you, shadow of punitive damages — you protect my family in ways I never think about!!!

  37. “In a free world, I could sell a cup of burning gasoline through a drive through and people could assume the risk and buy it.”

    Not that I agree with the case entirely, but your example is poor. The dangers inherent in a burning cup of gasoline are an order of magnitude different from the danger inherent in a cup of coffee. In other words, one danger that does not cross my mind when I buy a cup of coffee is the risk of getting third degree burns over a quarter of my body.

    It is interesting to note that McDonald’s had these problems and no other franchise that sold coffee. Meaning that the risk was not inherent in the product sold, but rather, in the particular manner McDonald’s sold it. Again, making the flaming gasoline an extremely inappropriate analogy.

    Bottom line, I wouldn’t have voted the way the jury did in that case. However, like the abortion issue, the case is one where reasonable people can come to different conclusions. Which is why I see it as a bad example for use in bashing PI attornies – there are much better examples out there, especially in class-action cases.

  38. “In a free world, I could sell a cup of burning gasoline through a drive through and people could assume the risk and buy it.”

    If you did, you would have an affirmative duty to make sure your customers knew the risks they were taking by buying your dangerous product.

    Now, everyone knows flaming cups of gasoline can cause burns sufficient to require hospitalization. However, most people who are familiar with coffee believe that the risk they are taking by buying one is that they could burn themselves bad enough to elict an “ouch.” And they have good reason to believe this – a normal cup of coffee is hot enough to make you say ouch, not hot enough to sear your pants into your flesh and require surgery and morphine.

    If you sell lawnmowers, people are expected to realize that they could lose a finger if they reach underneath it while it was running. If you sell a very special lawnmower that explodes 10% of the time when you pull the cord, people are not assumed to know that risk when they buy the lawnmower, unless you tell them.

  39. First, I am an attorney who used to work in tax, and I think you’re conflating tort and tax law.

    Wrt to tax laws and regulations, I wasn’t thinking of the actions of the judicial branch, but the legislative branch and the regulatory agencies it’s empowered. As I recall, you talked about legislation being sympathetic to corporate interests along with the courts.

    I guess the simple thought experiment I use is that corporations contribute millions of dollars to campaigns, pay lobbyists, sponsor judicial trainings, and so forth – it kind of makes sense that they would expect something for their investment.

    Granted – I’d be the last person to suggest that some corporations haven’t been very successful in purchasing influence on the Hill in order to obtain handouts, loopholes, etc. But this doesn’t mean that the system is sympathetic to corporate interests in general. And again, I would submit as evidence American corporate tax codes and the actions of various regulatory agencies.

    But I don’t understand your distrust of juries. Might as well distrust voters, huh?

    How could any libertarian not?

  40. “- there are much better examples out there, especially in class-action cases.”

    Yeah, baby, yeah! Asbestos, asbestos, asbestos everywhere — the most dangerous stuff in the world, deadlier than plutonium, worse than sarin, but superduper fine to make Ferraris and Gulfstream jets affordable to tort lawyers.

  41. But keep building strawmen if you’d like.

    lol Eric, your entire argument rests on the ‘coffee cup’ strawman.

    For every ‘frivolous’ lawsuit, there are literally thousands of suits brought by serioursly injured people against corporations whose chiefs couldn’t give a damn about the latent dangers inherent in their faulty products.

    But to make sure that one lady at the drive-thru doesn’t get her windfall, you would deny all of these people any practical means of redress. Good for you scarecrow.

    Oh and by the way, when harping on the famous coffee cup case what corporate apologists like you always fail to mention that the trial court award was overturned on appeal.

  42. Any lawyer at her firm (or the firms like them) would take that position, even if only as a client-relations effort. Big-time corporate law firms and insurance defense law firm typically echo their corporate and insurance company clients in calling for all manner of “tort reform.” Like most things in her past, this position seems consistent with maximizing career success by going where the wind blows (like being a Democrat and giving to Democratic causes when Texas was part of the Democratic South, and then becoming a Republican when Texas became down the line Republican). Not that there is anything wrong with making as much money as possible by doing whatever it takes (or adopting whichever beliefs are most advantageous), but it is not evidence of any deeper principle.

  43. A few people have asked why Libertarians would be opposed to the current system of civil ligation in this country..or more specifically perhaps – restrictions on awards and compensation?

    Well, for starters many of us are frustrated by the continuing growth of the “Nanny State” we’re living in today – in fact, I’m personally insulted every time I see packaging materials labeled “DO NOT INJEST”..

    Many are also financially affected by the result of what often appear to be excessive jury awards. The costs associated with available products and services reflect the excessive liabilities imposed by such actions and it’s ultimately the consumer who ends up paying “in the end” (er..no pun intended).

    I don’t blame trial lawyers or their clients however..they’re simply doing what our system allows and this is still a capitalist society I would hope. No – in my opinion it’s the excessive jury awards and the resulting financial incentives for lawyer and client alike which fuel this excessive litigation and this is where the changes ultimately need to occur.

    Sadly, the current system has redefined what goods and services we can purchase, how much we pay for such products, how competitive we are within the global market – and ultimately how many of us go about our day to day lives.

    ..so, yes I can understand why many libertarians would be opposed to the current system…a better question might be “why wouldn’t they..?”

  44. your entire argument rests on the ‘coffee cup’ strawman

    Right – that’s clearly the only case in recent history involving what some have considered a frivolous lawsuit. Some time at Dictionary.com could do you wonders.

    But to make sure that one lady at the drive-thru doesn’t get her windfall, you would deny all of these people any practical means of redress.

    So could a Hooked-on-Phonics cousre, it appears. Particularly since the post that you’re responding to is one which I specifically point out that I’m not in favor of prohibiting all corporate lawsuits. At least Joe had something of a valid excuse for getting the wrong impression.

    corporate apologists like you

    Right – you obviously haven’t seen anything that I’ve written about car insurance companies, pharmaceutical firms, the MPAA and RIAA, local phone companies, or Microsoft. Come to think of it, you might know what “strawman” means after all.

    the trial court award was overturned on appeal

    Not quite. An appeals judge reduced the verdict from $2.9 million to $640,000, though McDonald’s wound up settling prior to that. But since you get such a kick out of ignoring facts that stare right at you, feel free to pay no attention to that either.

  45. And, not to defend truly frivolous lawsuits, but that damn coffee cup case has got to be the most misused example in history. Everyone knows coffee is hot, yes? But not everyone keeps their coffee at 160 degrees, causing third degree burns instantly, and requiring skin grafts. I don’t remember the exact numbers, but there was like a 30-40 degree differential between how hot McDonalds kept their coffee and the industry standard. McDonalds had numerous prior complaints about burns, but there were internal memos showing that they intentionally kept their coffee that hot to improve flavor (and maybe to cut down on free refills, since it took longer for the coffee to become easily drinkable, if I recall correctly). And, apparently, the corporate rep who testified at trial for Mickey D’s was an all time horrible witness who the jury despised.

    There are a ton of bad lawsuits out there (I have clients in literally dozens of them), but the coffee case was not necessarily one of them.

  46. Jeff,

    I was in law school just after the McDonald’s case came out; my Torts class discussed it. IIRC the coffee was kept at a high temperature because it enabled more coffee to be extracted from the same quantity of beans, reducing overall cost. The sum awarded in punitives was suggested by plaintiff’s counsel, and supposedly equaled McDonald’s Corp.’s 1-day profit on coffee sales.

    I agree with your overall assessment.

  47. I think the coffee case comes up,not as a strawman arguement, but due to the fact that it is so strongly defended.

    I think the industry standard arguement is severly lacking. If McDonalds coffee is 160 and the standard is 30-40 degrees cooler that would make coffee 120-130. I take a shower at that temp.

    There were also additional factors involved. The woman was old and was wearing absorbant cloths.

    Overlawyered.com covers this case extensively and demonstates that most of the arguements for the case are exagerations of fact.

    McDonalds has paid out coffee spill settlements prior to this, but it only involved cases where an employee spilled coffee on someone.

    I could care less about McDonalds liability issues, but the case concerns me because of the message it sends. Deviation from normal standards (if they even exist) increases liability. I don’t want conformity in my product choices. If McDonalds coffee is too hot, go elsewhere. If your fast food choice is too cold, then go to McDonalds instead.

  48. Overlawyered.com? You mean the website of a political advocacy organization funded by corporations seeking to reduce their liability?

    There are frivious lawsuits out there, but asking overlawyered.com their opinion is prime fox/henhouse territory.

  49. Miers wrote Bush, “once again Texas would be required to hang its head in shame for circumstances driven by a handful of greedy, but immensely rich and powerful lawyers.”

    And Miers is what, exactly? A poor sharecropper?

    Also, given the high percentage of rich, powerful lawyers that are elected to the legislature, isn’t her statement akin to saying “once again the state’s agenda is being driven by the legislature”?

  50. Joe,

    You have proof of that?

    Besides, I listen to all view points and tend to devote to those that I agree with. Their arguments align well with my philosophy.

    The legal profession is just like any other industry. However, they don’t seem to have many checks and balances.

    Imagine if the government lawmakers and judges were almost all doctors, common sense says that profession would run amok. Why is it so hard to comprehend that the legal profession is out of control.

    The two worst offenses right now are class action lawsuit joinder and op out provisions. Class actions allow one small jurisdiction to enjoin plaintiffs and defendants nationally. Also, people are often plaintiff without their knowledge.

  51. Want to read about garbage litgation – check out.

    http://www.overlawyered.com/

  52. Mr. Joe P. Boyle:

    Overlawyered.com is a blog. It’s funded out of my pocket and (mostly) Walter Olson’s. If you have evidence of corporate funding, please let me know what it is, so I can ask for my share for my unpaid work over the last two years.

    Many thanks,

    Ted

  53. Hmm. I would appear to have confused you with the activists whose water you carry.

    1001 apologies.

  54. A lot of misinformation being spread about the coffee case here.

    1) “Industry standard” doesn’t exist. But if you read coffee FAQs around the web, they recommend a far higher temperature than 160 degrees. That’s because coffee tastes better when it’s brewed at a higher temperature.

    2) The evidence at trial was that the McDonald’s coffee was barely in the top quartile of temperature of coffee served in the Alberquerque area. Today, Starbuck’s serves its coffee at a higher temperature. The plaintiffs’ theory was that *all* drinks above 130 degrees were unreasonably dangerous.

    3) The plaintiff in the case, Stella Liebeck, had third-degree burns and required skin grafts because she was wearing cotton sweatpants, and sat in a puddle of hot coffee for over a minute and a half instead of drying herself off. McDonald’s coffee didn’t “instantaneously” require skin grafts, or they’d have far more complaints than 1-per-23-million-cups-of-coffee sold. And not every complaint involved a skin graft.

    4) While damages were reduced to $640,000 from $2.9 million, the plaintiff appealed the reduction, putting McDonald’s at risk of losing $2.9 million when they settled.

    5) Oh, by the way, there are thirteen reported cases involving coffee burns. Twelve of them were correctly thrown out by the courts as a matter of law. The judge never should’ve let this case get to a jury, and it’s appalling that torts professors are teaching otherwise.

    More information on overlawyered.com.

  55. Ted,

    Thanks for jumping in. I didn’t realize that you guys read this site.

  56. “The plaintiff in the case, Stella Liebeck, had third-degree burns and required skin grafts because she was wearing cotton sweatpants, and sat in a puddle of hot coffee for over a minute and a half instead of drying herself off.”

    Think about the assertion here – over the course of one and a half minutes, an elderly woman was having her skin seared, and her pants melted into her flesh. Rather than “attempting to dry herself off,” she thrashed, yelled, and was unable to rise out of her seat to protect herself. This inability to do so is being asserted as a reason why she bears all of the legal responsibility for her burns, rather than the party that handed her a coffee hot enough to melt cotton pants into human flesh.

  57. Do you think you could, of your own volition, hold a part of your body in water hot enough to sear your flesh for a minute and a half?

  58. I’ve been rethinking Ron’s idea about limiting lawyer fees. While I don’t believe that the government can set wages, perhaps we can do something better. As agents of the court, shouldn’t lawyers actually work for the court.

    They would then actually be government employees and would be the only ones allowed to present in a hearing and would be forbidden from accepting outside help. Then regardless of wealth, all plantiffs and defendants would be equal. I think this could be enforces under the constitutions “equality under the law” clauses.

  59. Joe,

    I think it was her physical condition and clothing not the temperature of the coffee that were the aggravating factors here. Yes, she is 100% responsible.

    I get the opinion that you believe that behind every mishap, there is some greedy corporation responsible.

  60. Ted and others, thanks for the input. It’s been a long time since I read about that case. My point is simply, as this thread demonstrates, the devil of any case is in the details, and almost any case can be spun (as plaintiff and defense lawyers do) to sound like no big deal, or a crime on par with genocide. It is too easy to read a two or three line blurb and assume the jury was completely nuts. Now, juries are often completely nuts, as are judges, but do not assume that the people who sat there for days or weeks listening to conflicting evidence are a bunch of idiots because the verdict sounds funny when you hear about it in a 10 second spot on the radio.

    The McDonald’s case has become the gold standard in crazy ass verdicts, and yet, it is not as simple as it at first sounds. And I say that as a lawyer who defends companies against nutty tort claims all the time.

  61. Programmer– I am pretty sure swelling the ranks of the government employment rolls does not qualify as a “libertarian” position. And having every lawyer be court-paid would only operate to give all parties legal representation on par with DMV customer service.

  62. Eric,

    I’m not in favor of prohibiting all corporate lawsuits.

    Get a clue. Your answer:

    there should be limits on the amount of money lawyers representing the plaintiffs can make off of them, thereby potentially limiting the number of frivilous/egregious cases that come to trial.

    This solution has the effect of reducing ALL lawsuits regardless of merit. Which means that you implicitly reduce the thousands of important and valid suits to get at the handful of frivolous ones. Nice work scarecrow.

    Right – you obviously haven’t seen anything that I’ve written about car insurance companies, pharmaceutical firms, the MPAA and RIAA, local phone companies, or Microsoft.

    Oh, I see. Only the companies that you have personally had problems with can be sued. The law according to Eric.

    Just wait until the car you buy blows up, or a chemical spill wipes out your neighborhood. You’ll be crying good and loud when you afford the attroney fees needed to supplement the reduced contigency fees.

  63. Jeff,

    It was just an idea. Contitutionally I think it is valid due to the demands for equality under the law. I would have to think more deeply about it. You are correct about the quality, but it would be equally bad for all.

  64. If you have evidence of corporate funding

    What do you do for a living right now, Ted? Where did Walter get his money? Where do you guys plan to go work if your overlawyered site fails to earn you a living?

    Disclaimer: I don’t know anything about overlawyered — it might be a great site, but these questions about possible bias remain valid. If the info I seek is not currently included at overlawyered, then it should be so we can detect any potential for bias.

  65. “I think it was her physical condition and clothing not the temperature of the coffee that were the aggravating factors here.”

    Her physical condition? “Well, your honor, I bumped her into the pool, but it was her physical weakness, and her decision to wear clothing that got heavy when waterlogged, that caused her to drown. She’s 100% resposible.”

  66. Programmer– I agree that there is a serious problem in terms of equality of access to the courts. Even for people who are not destitute, it has gotten to the point that many claims that are very important to the people that have them are in practice not cost-effective to pursue. If someone screws you out of 5-25 thousand dollars (or even more), for example, in most jurisdictions it is a tough call to decide whether to bother with this claim if you are paying your lawyer on an hourly basis (as almost all my firm’s clients do), even though a loss of this size is not one that most people can easily walk away from. I am not sure what can be done, but I sure don’t support government price controls, and I personally don’t think reducing contingent fee awards does much to address any of the problems being discussed here. It is contingent fee awards that allow the truly helpless to get into court. And not just those people. Imagine a professional couple making a combined $150,000 a year, with a normal American level of debt and bills. Now imagine their child has been killed due to medical malpractice. Do you think they could afford to finance the $250,000 to $1 million in litigation costs to take the doctor(s) and hospital(s) to trial if the defendants decided to fight it every step of the way? Against the chance of losing at trial and getting no money at all?

    Don’t get me wrong, most plaintiffs lawyers I know are total shitbags. But they take enormous risks in taking on expensive cases and getting them to trial. And the expense of trial is not limited to the attorney’s fees. There is an entire industry of support businesses that have grown up around litigation– court reporters, copy services, computer support, experts (doctors, engineers, forensic accountants, etc.)– that are absolutely necessary to prosecute or defend a lawsuit of any complexity. It is not unusual for good medical experts to charge $5000 and up for a day of testimony.

    And this does not even get into the problem of bad judges who refuse to do their duty and throw out terrible cases, and others who will throw out any case that comes across the docket regardless of merit. The system is broken to a great extent, but most of the “solutions” I see thrown out are typically competing ideas from industry shills and plaintiff firms designed to line their respective pockets.

  67. Jeff,

    Good post on the problems faced. I think we might agree that it is the uncertainty of victory that adds drastically to the cost.

    I have little knowledge of most legal specialties, but I did get some insight to divorce laws in Texas through my own case. I remember looking up the statutes and finding that the one regarding division of assets was simply ” a fair and equitable division of assets.” That struck fear into my soul as I realized that the judge could do anything he wanted. I really think we need more explicit statutes.

    I honestly believe that at this point it is impossible to determine what will incur liability and what won’t. A legal system is dysfunctional when individuals can not determine what the law actually is.

    I also don’t specifically believe in caps, but at the same time I think punitive damages should be awarded to the state.

    Finally, I think that personally responsibility should be a overriding factor and that the courts should return to the prudent man theory of law. It isn’t prudent to spill coffee on ones self. Any other factors are irrelevant in my opinion.

    I think all these problems could be resolved simply by reducing the number of lawyers elected to office. I don’t blame them individually, I just think it is a bad idea to have one profession dominate our government. Our laws are often vague and too much is delegated to the courts to resolve. I think that was done on purpose.

  68. Joe,

    Accidentally bumping someone into a pool does not usually result in death. Therefore, the woman in your example was 100% at fault. This person would have superior knowledge regarding her situation and should not have placed herself in a dangerous situation. It is easily foreseeable that she might fall in.

    I can’t understand why it is always the defendants responsibility to foresee every risk and not the plaintiffs

  69. Ted,

    You run a great website. Keep up the good work.

    Got to go now – only two more shopping days until Nietzsche’ birthday!

  70. This solution has the effect of reducing ALL lawsuits regardless of merit.

    It’ll reduce lawsuits, obviously, but he largest effect would undoubtedly be to reduce frivilous claims. Even someone as intellectually myopic as you can figure that out.

    Oh, I see. Only the companies that you have personally had problems with can be sued. The law according to Eric.

    By and large, my complaints with these companies have to do with their abuse of the legislative branch (car insurance companies, pharmaceutical companies, MPAA/RIAA), or the need for a non-judicial body to take action against some of their egregious practices (local phone companies). I wasn’t necessarily suggesting the need for lawsuits against them, but simply responding to your “corporate apologist” claim, you incorrigible twit.

    Though if you happen to be a shyster yourself, I suppose this remark could be attributed more to projection than to stupidity.

  71. Dave W.:

    “Where do you guys plan to go work if your overlawyered site fails to earn you a living?”

    Overlawyered doesn’t make money. There’s no advertising. There’s not even a tip jar. No one pays me to write there; no one checks to see whether I’ve written ten or fifty posts in any given month. I write for the site because it’s a focal point that’s read by a lot of attorneys and journalists and policymakers and other people interested in the same subject that I’m interested in.

    When I started writing for Overlawyered, it was a hobby in addition to my full-time job at a law firm. If anything, it took time away from money-making hobbies playing poker and investing in the stock market.

    I’m currently at a thinktank where I get to research and think about litigation reform issues full time, but given that, to take this job, I took a pay cut of more money than my mother, father, and brother make combined, it’s hardly the case that my opinions are bought and sold. Rather, it’s costing me money to spend time writing about litigation reform. It would be far more profitable for me to stop caring about the issue and go back to work at a law firm; this job even pays less than what I could make working for the Department of Justice.

  72. Ted,

    Wow, thanks and keep up the great work. I believe that one is more biased by their profession than their actual employer. I think it safe to assume that most lawyers want to extend their professions influence and wealth. I am amazed that your work is dedicated to reducing it.

    I think a similar analogy for myself would be if I was dedicated to increasing the number of programmer H1-bs issued. While I agree with it in principle, I don’t think I would ever fight for it.

  73. Joe,

    Your swimming pool example assumes the act of a negligent third party bumping someone into the pool. A more analogous example would be if the plaintiff purchased a pool for her home, fell into the pool because of her own carelessness, and then sued the swimming pool manufacturer for failing to anticipate that an elderly person who couldn’t swim might fall in. Is McDonald’s supposed to serve tepid coffee to 23 million people because one person might spill coffee on herself and not be spry enough to do anything about it? Should they require agility tests before the sale of the coffee? Check ID and have a 75-or-younger cutoff?

    It’s not like McDonald’s forces anyone to purchase hot coffee. I don’t even like hot coffee, so I buy a cold diet Coke if I want caffeine.

  74. go back to work at a law firm

    Okay, just make sure not to find any non-overlawyered cases. Otherwise you might have to write about them in the blog and that could make you less attractive to these prospective, future employers (or even your current one!!!).

  75. course you probably don’t own any stocks anymore, so at least that wouldn’t cause a bias. . . .

  76. “Is McDonald’s supposed to serve tepid coffee to 23 million people because one person might spill coffee on herself and not be spry enough to do anything about it?”

    When you keep repeating stuff like this even though it’s been corrected numerous times, it makes people think you might be knowingly misleading people. This happens a lot around here, I’ve noticed and pointed out, to my own detriment.

    Try again. There was a lot of room between “tepid” and “scalding”.

  77. M1EK,

    Apparently some dictionaries define “tepid” as 70-80 degrees, so I should use “lukewarm” instead of tepid to be more precise. But Reed Morgan, Stella Liebeck’s attorney, wrote in The Recorder on September 30, 1994, that any beverage over 130 degrees is “unreasonably dangerous,” which is cooler than every major chain serves its coffee. Look it up.

    Dave: I still own stocks, but, as much as I would wish it otherwise, Overlawyered does not have the power to move markets.

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